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Nationality and the International Judge: the Nationalist Presumption Governing the International Judiciary and Why It Must Be Reversed Tom Dannenbaum†

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Nationality and the International Judge: the Nationalist Presumption Governing the International Judiciary and Why It Must Be Reversed Tom Dannenbaum† \\jciprod01\productn\C\CIN\45-1\CIN103.txt unknown Seq: 1 24-MAY-12 13:55 Nationality and the International Judge: The Nationalist Presumption Governing the International Judiciary and Why it Must Be Reversed Tom Dannenbaum† Introduction ..................................................... 78 R I. International Courts and Statutory Approaches to Nationality ............................................... 79 R A. The Classic International Court ....................... 80 R B. The Court of Regional Political and/or Economic Integration ............................................ 83 R C. The Regional Human Rights Court .................... 85 R D. The International Criminal Court or Tribunal .......... 87 R II. How Different Courts Address the Issue of Judicial Nationality ............................................... 88 R A. The Original Approach ................................ 89 R B. Derivatives of the Original Approach................... 93 R C. The Cosmopolitan Approach .......................... 101 R III. Independence, Impartiality, and Nationality .............. 106 R A. Defining Concepts .................................... 107 R B. The “Original Approach” as a Manifestation of Anxiety over Judicial Nationalism .............................. 112 R IV. Is the Anxiety Justified and Does the Original Approach Help? .................................................... 119 R A. Is the Anxiety Justified? ............................... 120 R 1. Nationality in Perspective ........................... 120 R 2. Legal Reasoning and Justice in Gap-Filling ........... 123 R 3. The Power of the Judicial Ethic...................... 128 R 4. The Impartiality of the Judge in Jurisprudential Perspective ........................................ 140 R B. Anxiety Fulfilled— How the Original Approach Undermines its Own Ends ............................ 145 R 1. The Implications of the Original Approach ........... 145 R † PhD candidate, political theory, Princeton University; JD, Yale Law School 2010. I am especially grateful to Paul Kahn, Aharon Barak, and Keya J. Dannenbaum for their insights, criticisms, and comments. All errors, of course, remain the sole responsibility of the author. 45 CORNELL INT’L L.J. 77 (2012) \\jciprod01\productn\C\CIN\45-1\CIN103.txt unknown Seq: 2 24-MAY-12 13:55 78 Cornell International Law Journal Vol. 45 2. When More than One State is on Either or Both Sides of a Dispute ....................................... 148 R 3. The Interests of States Not Party to the Dispute Before the Court .......................................... 151 R 4. The Original Approach Creates, or at Least Exacerbates, the Worry of Subjective Partiality ....... 155 R C. Preliminary and Tentative Empirical Support for the Theory ............................................... 164 R V. Apologias: Diversity, Cooperation, Expertise, and Nationality ............................................... 166 R A. Apologias for the Judge Ad Hoc ....................... 167 R 1. Local Expertise on an International Bench........... 167 R 2. Fair Consideration of the Parties’ Arguments ......... 170 R 3. Institutional Survival ............................... 172 R B. A Possible Apologia for the Nationality Limit – The Imperative of Diversity ................................ 174 R VI. The Cosmopolitan Solution............................... 180 R Conclusion ...................................................... 184 R Introduction Independence and impartiality are among the qualities most funda- mental to effective and legitimate judging. However, despite acknowledging explicitly the importance of those concepts, the foundational texts of most international courts assume that the judges who sit on those courts are inherently and irreversibly partial to, and perhaps dependent on, their respective countries of origin. This assumption is most clearly manifested in three provisions, one or more of which are adopted by the majority of international courts. First, most international courts are bound by strict limits on the number of judges of a given nationality that may sit on the bench. Second, under the rules governing a number of international courts, each party in a given case may appoint a judge ad hoc when neces- sary to counterbalance the presence of a national of an opponent party on the bench. Finally, judges on some international courts must recuse them- selves from cases involving their countries of nationality. Underlying these rules is a deep anxiety about judicial nationalism and the threat it poses to the independence and impartiality of international courts. This Article finds these rules to be both misguided and counter- productive on their own terms. First, nationality is not a characteristic of sufficient potency to raise concern about the impartiality of a judge. Sec- ond, even if one were to accept anxiety about judicial nationalism, extant approaches to mitigating the perceived threat fail completely in their endeavor. Third, lending statutory imprimatur to such anxiety may actu- ally exacerbate the threat of bias by normalizing the notion of judicial nationalism and thus contributing injuriously to the international judge’s conception of her professional role. \\jciprod01\productn\C\CIN\45-1\CIN103.txt unknown Seq: 3 24-MAY-12 13:55 2012 Nationality and the International Judge 79 The Article is organized as follows. Part I adopts a standard classifica- tion of international courts into four types. Part II describes the various approaches taken by international courts to the issue of judicial national- ity. Courts from all four court-types adopt what is termed here the “origi- nal approach,” or a derivative thereof. The texts governing these courts regulate the spread of nationalities on the court as a whole and/or the com- position of judicial nationalities on the bench in any given case. A small minority of international courts instead adopts a “cosmopolitan approach,” whereby judicial nationality is deemed irrelevant. Part III argues that the dominant focus on judicial nationality is grounded funda- mentally in a deep-seated anxiety about judicial nationalism and its impact on independence and impartiality. Part IV contends first that this anxiety is not justified, and second that even if it were justified, the provisions used to ameliorate the anxiety are misguided and ultimately counterproductive on their own terms. Part V examines alternative bases for these provisions and finds none to be plausible. Part VI advocates a broad shift among international courts to the cosmopolitan paradigm exemplified most powerfully by the World Trade Organization Appellate Body and the Carib- bean Court of Justice. I. International Courts and Statutory Approaches to Nationality Since the Permanent Court of International Justice (PCIJ) was rein- carnated as the International Court of Justice (ICJ) following World War II, the number of international courts has expanded dramatically, proliferat- ing at a particularly high rate in recent decades.1 The younger interna- tional courts cover new areas of the law and reach deeper into the internal workings of states than do their longer-established counterparts.2 Debates about the composition, structure, and legitimacy of international courts are thus of growing consequence for both states and individuals. To set the context for considering the status of judicial nationality in those debates, two preliminary clarifications are in order. First, courts must be distinguished from similar institutions that oper- ate in the international arena, such as arbitral tribunals3 and treaty bod- ies.4 It is sufficient for the purposes of this Article to adopt the five 1. Ruth Mackenzie & Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 HARV. INT’L L.J. 271, 272– 273 (2003) (noting the “virtual monopoly on the judicial resolution of international disputes” held by the ICJ and its fifteen judges until the late 1950s, and charting the dramatic expansion since, both in terms of numbers and spheres of influence). 2. Id. 3. See, for example, the system of arbitration that operates under the auspices of the Permanent Court of Arbitration. Convention for the Pacific Settlement of Interna- tional Disputes [Hague I] arts. 20– 29, July 29, 1899, 32 Stat. 1779, 1 Bevans 230; Con- vention for the Pacific Settlement of International Disputes [Hague II] arts. 41– 50, Oct. 18, 1907, 36 Stat. 2199, 1 Bevans 577. 4. See, for example, the Human Rights Committee, which is charged with interpret- ing the International Covenant on Civil and Political Rights. International Covenant on Civil and Political Rights arts. 28– 45, G.A. Res. 2200A (XXI), 21 U.N. GAOR at 52, 999 \\jciprod01\productn\C\CIN\45-1\CIN103.txt unknown Seq: 4 24-MAY-12 13:55 80 Cornell International Law Journal Vol. 45 characteristics of international courts proposed by Terris et al.: (1) an international court is “permanent, or at least long-standing”; (2) it is “established by an international legal instrument”; (3) it “use[s] interna- tional law to decide cases”; (4) it “decide[s] cases on the basis of rules of procedure which pre-exist the case and usually cannot be modified by the parties”; and (5) its judgments are legally binding.5 Second, contemporary international courts fulfill a diverse array of purposes, in a number of areas of law, with varying consequences for the entities subject to their jurisdiction. This diversity is a function of the courts’ different, but overlapping jurisdictions ratione loci,6
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